Tribunal Criminal Tribunal for the Former Yugoslavia

Page 221

 1                           Monday, 27 January 2014

 2                           [Open session]

 3                           [Appeals Judgement]

 4                           [The Appellant entered court]

 5                           --- Upon commencing at 3.30 p.m.

 6             JUDGE AGIUS:  Good afternoon, everybody.

 7             Madam Registrar, could you call the case, please.

 8             THE REGISTRAR:  Good afternoon, Your Honours.

 9             This is case IT-05-87/1-A, The Prosecutor versus Vlastimir

10     Djordjevic.

11             JUDGE AGIUS:  I thank you.

12             Mr. Djordjevic, I address myself to you.  I want to make sure

13     before we proceed that you can follow the proceedings in a language that

14     you understand.

15             THE APPELLANT: [No interpretation].

16             JUDGE AGIUS:  I see that -- I see that -- was your microphone on?

17     Because your rely didn't register.

18             THE APPELLANT: [Interpretation] Excuse me, the microphone was not

19     on.  I can follow everything in my language.

20             JUDGE AGIUS:  I thank you.

21             I would like now to ask the parties to identify themselves,

22     starting with counsel for the Prosecution.

23             MS. KRAVETZ:  Good afternoon, Your Honours.  My name is

24     Daniela Kravetz, together with my colleagues Kyle Wood, Priya Gopalan,

25     and our Case Manager, Colin Nawrot for the Prosecution.  Thank you.


Page 222

 1             JUDGE AGIUS:  Thank you.  I turn myself now to counsel for

 2     Appellant Djordjevic.

 3             MR. DJORDJEVIC:  Good afternoon, I'm Dragoljub Djordjevic; I'm

 4     lead counsel.  Together with me today is co-counsel Veljko Djurdjic and

 5     legal assistants, Ms. Marie O'Leary, Mr. Aleksandar Popovic, and

 6     Mr. Russell Hopkins.

 7             JUDGE AGIUS:  I thank you very much.

 8             Pursuant to the Scheduling Order issued on 15th November 2013,

 9     the Appeals Chamber today delivers its judgement in the case of The

10     Prosecutor versus Vlastimir Djordjevic.

11             I shall be reading now a summary of the central findings of the

12     Appeals Chamber.  The summary does not constitute the official and

13     authoritative judgement of the Appeals Chamber.  The official judgement

14     is rendered in writing and will be distributed to the parties at the

15     close of this hearing.

16             This case relates to events which took place in Kosovo between

17     the 1st of January and 20th of June of the year 1999.  Throughout that

18     time, Mr. Djordjevic was the assistant minister to the Serbian minister

19     of the internal affairs, which I will be referring to as the MUP, and

20     chief of the public security department of the MUP, the RJB.

21             The Trial Chamber issued its judgement on 23rd February 2011.  It

22     convicted Mr. Djordjevic under five counts for the crimes of deportation,

23     other inhumane acts, consisting in forcible transfer, and persecutions on

24     racial grounds as crimes against humanity, as well as murder as a crime

25     against humanity, and also as a violation of the laws or customs of war.


Page 223

 1     The Trial Chamber found that Mr. Djordjevic participated in a joint

 2     criminal enterprise with the purpose of modifying the ethnic balance in

 3     Kosovo to ensure Serbian control over the province.  This purpose was

 4     achieved through the commission of these crimes.  The Trial Chamber also

 5     found that Mr. Djordjevic aided and abetted the same crimes.

 6             The Trial Chamber sentenced Mr. Djordjevic to 27 years of

 7     imprisonment.

 8             In his appeal, Mr. Djordjevic raises 19 grounds of appeal,

 9     challenging the findings of the Trial Chamber, and the Prosecution raises

10     two grounds of appeal.

11             The Appeals Chamber heard oral submissions by the parties on

12     13th May of last year.

13             I will now proceed to summarise the Appeals Chamber's main

14     findings on Mr. Djordjevic's appeal before turning to the Prosecution

15     appeal.

16             In his first ground of appeal and in grounds 3, 4, and 5,

17     Mr. Djordjevic raises a number of arguments in relation to the joint

18     criminal enterprise.  In particular, he challenges the Trial Chamber's

19     findings concerning the existence of the joint criminal enterprise; the

20     timing and the members of the joint criminal enterprise; the plurality of

21     persons; and the nature of the common plan.  The Appeals Chamber finds

22     that Mr. Djordjevic has failed to demonstrate that the Trial Chamber

23     erred in its conclusions on these issues.

24             The Appeals Chamber therefore dismisses Mr. Djordjevic's first,

25     third, fourth, and fifth grounds of appeal.


Page 224

 1             In ground 2, part of ground 6 and ground 8 of his appeal,

 2     Mr. Djordjevic submits that there are cogent reasons for the Appeals

 3     Chamber to depart from its jurisprudence on various aspects of the law on

 4     joint criminal enterprise.  Specifically, he argues that the Appeals

 5     Chamber should depart from its previous decisions finding that joint

 6     criminal enterprise, as a form of liability, exists in customary law and

 7     that convictions for specific intent crimes can be entered on the basis

 8     of liability under the third category of joint criminal enterprise.

 9             The Appeals Chamber finds that Mr. Djordjevic has failed to

10     demonstrate the existence of cogent reasons for such departure from its

11     jurisprudence, and therefore dismisses Mr. Djordjevic's second ground of

12     appeal, the relevant part of the sixth ground of appeal, and the eighth

13     ground of appeal.

14             In the remainder of his sixth ground of appeal, Mr. Djordjevic

15     submits that the Trial Chamber failed to establish the required link

16     between the joint criminal enterprise members and the physical

17     perpetrators of the crimes.  In its judgement, the Appeals Chamber also

18     rejects this argument, which it finds unfounded, and accordingly

19     dismisses ground 6 in its entirety.

20             Under his seventh ground of appeal, Mr. Djordjevic submits that

21     the Trial Chamber erred in concluding that the crimes of murder and

22     persecutions fell within the joint criminal enterprise.  He argues that

23     the Trial Chamber failed to establish that each member of the joint

24     criminal enterprise shared the requisite mens rea for these crimes.  The

25     Appeals Chamber finds that the Trial Chamber made all the necessary


Page 225

 1     findings and that Mr. Djordjevic has failed to show that no reasonable

 2     trier of fact could have reached the same conclusion as the Trial

 3     Chamber.  Accordingly, ground 7 is dismissed.

 4             Under his ninth ground of appeal, Mr. Djordjevic makes a number

 5     of submissions, divided into eight subgrounds, concerning his

 6     participation in the joint criminal enterprise.  He argues that the Trial

 7     Chamber committed several errors of law and fact, which resulted in a

 8     mischaracterisation of his conduct and improperly linked him to the joint

 9     criminal enterprise.

10             For the reasons set out in the judgement, the Appeals Chamber,

11     Judge Tuzmukhamedov dissenting in part, is not persuaded by

12     Mr. Djordjevic's arguments.  Therefore, Judge Tuzmukhamedov dissenting in

13     part, the ninth ground of appeal is dismissed in its entirety.

14             Under his tenth ground of appeal, Mr. Djordjevic submits that the

15     Trial Chamber committed several errors of law and fact in assessing his

16     mens rea for the joint criminal enterprise liability.  He advances

17     several -- numerous arguments to the effect that the Trial Chamber erred

18     in finding that he possessed the criminal intent for the joint criminal

19     enterprise.

20             One of his arguments is that the Trial Chamber erred in relying

21     on certain reports by Human Rights Watch, in inferring his knowledge of

22     the crimes.  The Appeals Chamber agrees with this submission.  However,

23     for reasons outlined in the judgement, the Appeals Chamber considers that

24     this error does not impact the Trial Chamber's conclusion on

25     Mr. Djordjevic's knowledge of the crimes and its overall conclusion that


Page 226

 1     he possessed the required intent for joint criminal enterprise liability.

 2             The Appeals Chamber rejects all other arguments advanced by

 3     Mr. Djordjevic in this ground of appeal, as he has failed to show that no

 4     reasonable trier of fact would have come to the conclusion that he

 5     possessed the required or requisite intent for the joint criminal

 6     enterprise, based on the evidence.  Mr. Djordjevic's tenth ground of

 7     appeal is therefore dismissed.

 8             Under his 12th ground of appeal, Mr. Djordjevic submits that the

 9     Trial Chamber misapplied the definition of "civilian" and therefore erred

10     in convicting him for the crimes of deportation, other inhumane acts

11     consisting in forcible transfer and murder.

12             The Appeals Chamber, Judge Tuzmukhamedov dissenting in part, is

13     not persuaded by any of his arguments.  As described in the judgement,

14     the Appeals Chamber considers that the Trial Chamber did not err in its

15     determination of the protected status of victims or in its assessment of

16     the proportionality of the attack.  Accordingly, Judge Tuzmukhamedov

17     dissenting in part, ground 12 is dismissed.

18             Under his 13th ground of appeal, Mr. Djordjevic submits that the

19     Trial Chamber erred in finding that the crime of deportation was

20     committed with respect to Kosovo Albanians who were displaced from Kosovo

21     to Montenegro.

22             In its judgement, the Appeals Chamber finds that, consistent with

23     the Tribunal's jurisprudence, the Trial Chamber correctly observed that

24     the crime of deportation can be established by displacement across a

25     de facto border.  However, it failed to articulate the basis in customary


Page 227

 1     international law upon which a de facto border could be established in

 2     this instance.  This, in the opinion, or in the conclusion of the Appeals

 3     Chambers, constitutes an error of law.  Consequently, the Appeals Chamber

 4     has considered whether the finding that a de facto border existed between

 5     Kosovo and Montenegro is supported in customary international law.  It

 6     has found no such support.  Therefore, the Trial Chamber erred in

 7     concluding that the crimes of deportation and persecutions through the

 8     act of deportation were committed with respect to the displacement from

 9     Kosovo to Montenegro.  For these reasons, the Appeals Chamber overturns

10     the Trial Chamber's finding in this respect and grants the 13th ground of

11     appeal.

12             Under his 14th ground of appeal, Mr. Djordjevic submits that the

13     Trial Chamber erred in convicting him for murder in relation to certain

14     crime sites where premeditation was not established.  In its judgement,

15     the Appeals Chamber holds that the jurisprudence of the Tribunal has not

16     required premeditation as an element of the crime of murder.  That's

17     under Article 3 and 5 of the Statute of the Tribunal.  The Appeals

18     Chamber finds that Mr. Djordjevic has advanced no cogent reasons which

19     would justify the Appeals Chamber to depart from this jurisprudence.

20     Accordingly, his arguments are rejected and his 14th ground of appeal is

21     dismissed.

22             Under his 5th ground of appeal, in part, Mr. Djordjevic submits

23     that the Trial Chamber committed errors of law and fact in finding that

24     the crime of persecutions was established through the destruction of

25     certain mosques.  He also submits that the Trial Chamber erred in the


Page 228

 1     application of the equal gravity test in relation to the underlying act

 2     of destruction of religious property.

 3             The Appeals Chamber, Judge Tuzmukhamedov dissenting in part,

 4     finds that the Trial Chamber did not err in these respects and therefore

 5     dismisses the 15th ground of appeal in part.  The remainder of this

 6     ground is addressed in the context of the 17th ground of appeal.

 7             Under his 16th ground of appeal, Mr. Djordjevic submits that the

 8     Trial Chamber erred in convicting him of the crimes of deportation, other

 9     inhumane acts consisting in forcible transfer, murder, and persecutions

10     with respect to several incidents as they were not alleged in the

11     indictment.

12             In its judgement, the Appeals Chamber finds the Trial Chamber

13     erred in finding Djordjevic responsible for the crime of deportation in

14     relation to two incidents; the crime of other inhumane acts consisting in

15     forcible transfer in relation to two incidents; and the crime of murder

16     in relation to the killing of 11 individuals at two locations; and the

17     crime of persecution in relation to all of these incidents.

18             The details will be set out later on during this hearing in the

19     latter part of this summary.

20             With respect to all of the other incidents, which have been

21     challenged by Appellant Djordjevic, the Appeals Chamber finds that he has

22     shown no error.

23             In the light of the forgoing, the Appeals Chamber grants the 16th

24     ground of appeal, in part.

25             Under his 17th ground of appeal and part of his 15th ground of


Page 229

 1     appeal, Mr. Djordjevic challenges the Trial Chamber's findings that the

 2     crimes of deportation, other inhumane acts consisting in forcible

 3     transfer, murder, and persecutions were established in certain locations.

 4             The Appeals Chamber, Judge Guney and Judge Tuzmukhamedov

 5     dissenting in part, finds that Mr. Djordjevic has failed to demonstrate

 6     an error in this regard.  Therefore, Judge Guney and Judge Tuzmukhamedov

 7     dissenting in part, the Appeals Chamber dismisses ground 17 of Appellant

 8     Djordjevic in its entirety and ground 15 in part.

 9             Under his 18th ground of appeal, Mr. Djordjevic presents two

10     subgrounds.  First Mr. Djordjevic submits that the Trial Chamber erred by

11     convicting him twice for the same crimes.  Once for committing the crimes

12     through participation in a joint criminal enterprise; and again for

13     aiding and abetting these crimes.  The Appeals Chamber is satisfied that

14     the Trial Chamber only convicted him once for the crimes but on the basis

15     of two modes of liability.  The Appeals Chamber also finds that it was

16     within its discretion - that is, within the Trial Chamber's discretion -

17     to enter convictions on the basis of more than one mode of liability.

18     However, the Appeals Chamber finds that the Trial Chamber failed to

19     articulate why both modes of liability were necessary to reflect the

20     totality of Mr. Djordjevic's criminal conduct.  This amounted to an error

21     of law.  The Appeals Chamber considered that in this case, the criminal

22     conduct of Mr. Djordjevic is fully reflected in a conviction based solely

23     on his participation in the joint criminal enterprise.  The Appeals

24     Chamber therefore grants this subground, in part, and reverses the Trial

25     Chamber's findings concerning Counts 1 to 5 with respect to aiding and


Page 230

 1     abetting.

 2             In the light of this finding, Mr. Djordjevic's 11th ground of

 3     appeal, which raised the arguments in relation to aiding and abetting,

 4     becomes moot.

 5             His second subground asserts that the Trial Chamber erred in

 6     entering convictions pursuant to Article 5 of the Statute for the crimes

 7     of deportation and other inhumane acts, consisting in forcible transfer,

 8     and murder in addition to a conviction for the crime of persecutions

 9     through those same acts.  In its judgement, the Appeals Chamber finds no

10     such error.  This subground is therefore dismissed.

11             I will now set out the Appeals Chamber's findings on the

12     Prosecution's appeal.

13             In its first ground of appeal, the Prosecution submits that the

14     Trial Chamber erred in law and in fact by finding that the crime of

15     persecutions through sexual assault was not established.

16             The Prosecution argues that the Trial Chamber erred in failing to

17     find that underlying acts of sexual assault was established in relation

18     to a Kosovo Albanian girl in a convoy in Pristina municipality and two

19     young Kosovo Albanian women in Beleg.  It further argues that the Trial

20     Chamber erred in failing to find that the crime of persecutions was

21     established through the sexual assault of five women; namely, the three

22     aforementioned women and Witnesses K14 and K20.  Finally, the Prosecution

23     argues that the Trial Chamber erred in failing to find Mr. Djordjevic was

24     liable for persecutions through these sexual assaults under the third

25     category of joint criminal enterprise.


Page 231

 1             In its judgement, the Appeals Chamber finds that the Trial

 2     Chamber erred in failing to find that the three women were sexually

 3     assaulted.  It further finds that the Trial Chamber committed an error of

 4     law in its assessment of the discriminatory intent of the perpetrators of

 5     the sexual assaults.  For reasons set out in the judgement, the Appeals

 6     Chamber, Judge Tuzmukhamedov dissenting, is satisfied that the sexual

 7     assaults of a Kosovo Albanian girl in a convoy in Pristina municipality,

 8     two young Kosovo Albanian women in Beleg, and Witnesses K14 and K20 were

 9     carried out with discriminatory intent and amounted to persecutions.

10     Furthermore, the Appeals Chamber, Judge Tuzmukhamedov dissenting, finds

11     that it was foreseeable for -- to Mr. Djordjevic that persecutions

12     through sexual assaults might be committed and that he willingly took the

13     risk when he participated in the joint criminal enterprise.  It therefore

14     finds Mr. Djordjevic responsible for the crimes of persecution under the

15     third category of joint criminal enterprise.

16             In the light of these findings, the Appeals Chamber,

17     Judge Tuzmukhamedov dissenting, grants the Prosecution's first ground of

18     appeal and, Judge Guney dissenting, enters a conviction under Count 5 for

19     persecutions through sexual assault as a crime against humanity pursuant

20     to the third categorise of joint criminal enterprise.

21             I will now turn to sentencing.

22             Mr. Djordjevic, in his 19th ground of appeal, and the

23     Prosecution, in its second ground of appeal, challenged the sentence of

24     27 years imprisonment imposed by the Trial Chamber.

25             The Appeals Chamber finds that it was within the discretion of


Page 232

 1     the Trial Chamber to consider Djordjevic's role and position as an

 2     aggravating factor.  However, the Trial Chamber committed a discernible

 3     error by failing to assess whether Mr. Djordjevic abused his position of

 4     authority.  The Appeals Chamber therefore grants Mr. Djordjevic's 19th

 5     ground of appeal, in part.  However, it finds his other arguments

 6     unpersuasive and dismisses them.  The Appeals Chamber is also not

 7     persuaded by the Prosecution arguments and therefore dismisses its second

 8     ground of appeal.

 9             In the light of the above, and in its overall assessment of the

10     circumstances of the case, the Appeals Chamber finds that a reduction in

11     Djordjevic's sentence is appropriate.  In particular, the Appeals Chamber

12     considers that the convictions entered by the Trial Chamber which have

13     now been overturned on appeal, outweigh the new convictions entered by

14     the Appeals Chamber - not only in terms of number of victims but also by

15     way of Djordjevic's level of responsibility.  By this, however, the

16     Appeals Chamber by no means intends to suggest that the crimes for which

17     Djordjevic has been convicted on appeal are not grave.  Considering the

18     foregoing, and in the circumstances of this case, including

19     Mr. Djordjevic's age, the Appeals Chamber will be reducing his sentence.

20             Disposition.  I will now read out the disposition of the appeals

21     judgement.

22             Mr. Djordjevic, will you please rise.

23             For the foregoing reason, the Appeals Chamber,

24             Pursuant to Article 25 of the Statute and Rules 117 and 118 of

25     the Rules of Procedure and Evidence;


Page 233

 1             Noting the written submissions of the parties and their oral

 2     arguments presented during the appeal hearing of the 13th May 2013;

 3             Sitting in open session;

 4             With respect to Djordjevic's appeal:

 5             Grants Djordjevic's 13th ground of appeal, and reverses his

 6     conviction for deportation (Count 1) and persecutions through deportation

 7     (Count 5) with respect to the displacement of individuals to Montenegro

 8     from Pec on 27 and 28 March, 1999, and from Kosovska Mitrovica on the 4th

 9     of April, 1999;

10             Grants, in part, Djordjevic's 16th ground of appeal, and reverses

11     his convictions in so far as they relate to:

12             First, deportation (Count 1) and persecutions committed through

13     deportation (Count 5) at Kladernica, in Srbica/Skenderaj municipality,

14     between the 12th and 15th April 1999 and Suva Reka town between 7 and 21

15     May 1999;

16             Second: Other inhumane acts consisting in forcible transfer

17     (Count 2) and persecutions committed through forcible transfer (Count 5)

18     at Brocna and Tusilje in Srbica/Skenderaj municipality between 25th and

19     26th March and on 29th March 1999 respectively, and Cuska in Pec

20     municipality on 14 May 1999;

21             Third, murder, as a crime against humanity, and as a violation of

22     the laws or customs of war (Counts 3 and 4) and persecutions committed

23     through murder (Count 5) of two elderly men at Podujevo town, in Podujevo

24     municipality, on 28 March 1999 and of nine men at Mala Krusa in Orahovac

25     municipality on the 25th March 1999;


Page 234

 1             Grants, in part, Djordjevic's 18th ground of appeal, reverses his

 2     convictions for Counts 1 to 5 on the basis of aiding and abetting, and

 3     consequently declares moot his 11th ground of appeal;

 4             Grants, in part, Djordjevic's 19th ground of appeal and finds

 5     that the Trial Chamber erred in considering his position of authority as

 6     an aggravating factor;

 7             Dismisses the remainder of Djordjevic's appeal, Judge Guney

 8     dissenting with respect to Djordjevic's 17th ground of appeal, in part,

 9     and Judge Tuzmukhamedov dissenting with respect to Djordjevic's

10     subgrounds 9(E),(F), and (G), and, in part, 12th, 15th, and 17th grounds

11     of appeal;

12             Affirms all other convictions pursuant to Counts 1 to 5.

13             With respect to the Prosecution's appeal:

14             Grants, Judge Guney and Judge Tuzmukhamedov dissenting in part,

15     the Prosecution's first ground of appeal, and finds Djordjevic guilt,

16     pursuant to Articles 5 and 7(1) of the Statute, of the crimes of

17     persecutions through sexual assaults as a crime against humanity,

18     pursuant to the third category of joint criminal enterprise in relation

19     to the sexual assaults of Witness K20 and the two young women in Beleg,

20     Witness K14 and the Kosovo Albanian girl in a convoy, and revises

21     Djordjevic's conviction with respect to Count 5 accordingly;

22             Dismisses the Prosecution's second ground of appeal;

23             Sets aside the sentence of 27 years of imprisonment and imposes a

24     sentence of 18 years of imprisonment, subject to credit being given under

25     Rule 101(C) of the Rules of Procedure and Evidence for the period he has


Page 235

 1     already spent in detention;

 2             Orders, in accordance Rules 103(C) and 107 of the Rules, that

 3     Vlastimir Djordjevic is to remain in the custody of the Tribunal pending

 4     the finalisation of arrangements for his transfer to the state where his

 5     sentence will be served.

 6             Judge Guney appends a partially dissenting and separate opinion.

 7             Judge Tuzmukhamedov appends a dissenting opinion.

 8             Mr. Djordjevic, you may be seated.

 9             Registrar, you are free to distribute copies of the judgement to

10     the parties now.

11             Thank you.

12             Before concluding the hearing, I would like to briefly thank

13     everyone in this courtroom and outside this courtroom who have helped us

14     throughout these proceedings over the past months and two years without

15     whom and without whose help we wouldn't have come to this stage today.

16     In particular, I would like to thank my learned colleagues sitting with

17     me here today for all their help, counsel, advice and co-operation.

18             I will now conclude this hearing.

19             The Appeals Chamber stands adjourned.

20                           --- Whereupon the hearing adjourned at 4.11 p.m.

21

22

23

24

25